Chauvin Trial Day 8 Wrap-Up: Defense Pummels Prosecution with Their Own Expert Witness

Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd.  I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.

Personal Message from Andrew: Hey folks, obviously thousands of you are new to me and my firm, Law of Self Defense, and I have to say it’s really humbling to see this onrush of attention–and thanks to so many of you for your kind words and encouragement! For those who’d like to know more about what we do, I’d like to offer each of you a complimentary copy of our best-selling book, “The Law of Self Defense: Principles,” a plain-English explanation of use-of-force law, for FREE. Normally the book is $25 + S&H, but if you’ll just cover the S&H cost of getting the book to you, we’ll cover the $25.  If you’re interested–and I hope you are!–just click here: FREE COPY Law of Self Defense: Principles Book.

State’s Witness: Sergeant Jody Stiger, Los Angeles Police Department, Expert Witness

Today’s testimony began with the continuation of the direct questioning by Prosecutor Schleiter of Sergeant Jody Stiger, of the Los Angeles Police Department, who has been retained by the state prosecutors as an expert witness on use-of-force tactics and policy.

You’ll recall that the direct of Stiger began yesterday afternoon and ran for 30 minutes, until Judge Cahill decided to call it a day.  That direct continued today for about another 45 minutes, before the witness was turned over to the defense.

Here’s a leading indicator that state-paid use-of-force expert witness Stiger was ultimately more favorable to the defense than he was to the prosecutors who’d paid him $13,000 to provide his expertise to help convict Chauvin:  Whereas the State spent about 75 minutes questioning their own expert, Defense Counsel Nelson spent more than 90 minutes doing so.

That’s right, so fond was the defense of the State’s expert, so strongly did the defense believe that the testimony of the State’s expert favored Chauvin, that they spent 20% more time engaged with that expert in front of the jury than did the prosecutors.

In fact, the disparity is even worse if we only look at substantive questioning.  Any party who calls an expert witness has to take time to establish the expert’s credentials, training, experience, and then also the methodology used by the expert to form their opinion.  In this case that took the state a full 20 minutes, meaning they only questions Stiger substantively about his expert opinion for 55 minutes.

In that context, the defense actually spent 65% more time with the State’s expert witness, in front of the jury, engaged in substantive questioning, then did the State that paid that expert.

Folks, when the disparity in engagement is that great, I’m not at all sure that the State shouldn’t refer Stiger’s bill over to the defense for payment—certainly by the end of his expert testimony it sure felt like Stiger was more a defense expert than a state expert.

I do want to make clear up front that Stiger did right by his client and said the magic words they wanted him to say:  In effect, that in his expert opinion, to a reasonable degree of legal certainty, Chauvin’s use of force on Floyd was excessive.

Fair enough.

But there are, of course, two sides to la egal fight in our adversarial system, and today with Stiger subject to the cross-examination of Defense Counsel Nelson we got to see the other side of the argument.

So, let’s jump right in.

Stiger Direct Questioning

Once again, the prosecution sought to present the jury with a narrative of events stripped of all context and circumstances—and I’ll say again I find this to be a terribly flawed legal strategy, because inevitably the defense gets to jump up and present the rest of the context.  The result can only be a loss of credibility of the prosecution in the eyes of the jury.

In this instance, Schleiter framed the use-of-force narrative in an extremely narrow sense by defining what he called the “period of restraint,” essentially the period from when Floyd was proned on the street until the Chauvin turned Floyd over to the paramedics, a period of some 9 minutes and 29 seconds.

The reason for this framing is to suggest that everything else that had happened with Floyd prior to the start of the “period of restraint” should be considered off the table for the purposes of evaluating the reasonableness of Chauvin’s use of force.

This is, of course, utter nonsense.  A suspect who has been 100% compliant with arrest throughout is fundamentally a different (and much lower) risk for officers than is a suspect who has violently fought multiple officers for 10 minutes, to the point where the officers concluded their efforts to make a lawful arrest were futile.

To pretend that the officers who had just fought the violent suspect for 10 minutes are supposed to erase that experience from their brains the moment the suspect appears to have ceased resistance is simply ridiculous, even childish.

Another trick suddenly employed by the prosecution today is to move the goal posts on what they claim was Chauvin’s precise physical misconduct. Throughout the entire week and a half of the state presenting their case in chief they have been claiming that Chauvin placed his knee on Floyd’s neck.

Initially, according to the state witness MMA “expert” Williams, the placement of the knee on the neck constituted a “blood choke,” a use of deadly force upon Floyd. Later, the defense argued that this was constricting Floyd’s ability to breath, initially by compression of the neck, later by compression of Floyd’s whole body, and then all that augmented by purported “positional asphyxia.”

All those arguments were, of course, presented as if Floyd did not have a three-fold fatal level of fentanyl in his system, which effectively also kills via asphyxiation.

This line of argument took a body blow from the defense, however, when Nelson began displaying images of the knee placement from different angles showing that Chauvin’s knee appeared to be on Floyd’s shoulders and back, rather than on Floyd’s neck. Indeed, Lt. Mercil, the state’s expert on MPD use-of-force training and policy explicitly agreed on cross-examination that this appeared to be the case.

So what’s the state to do when a key facet of their narrative of criminal conduct is contradicted by their own expert?  Move the goals posts, of course.

Today, however, Prosecutor Schleiter and his state-paid use of force expert Stiger began to avoid the claim that Chauvin’s knee was on Floyd’s neck, and instead started referring to Chauvin’s knee being on Floyd’s “neck area.”

What’s the “neck area”?  Well, the shoulders and upper back!

Again and again we heard Schleiter and Stiger refer to “neck area,” “neck area,” “neck area,” as if repeating it often enough would fog our minds, and the minds of the jury, and we’d simply be unable to realize that the goal posts had been moved.

Pro-tip: Don’t do this in legal argument, especially if you know your direct questioning of your well-paid expert witness is going to be immediately followed by Defense Counsel Nelson’s cross-examination.  We’ll cover how Nelson dealt with this act of sleight of rhetoric in a moment.

Another trick used by Schleiter to strip context from the dynamic confrontation with Floyd was to have expert witness Stiger reference the MPD policy on use of force, and read off three bullet points that policy highlights as guidance for a reasonable officer.

Specifically, those bullet points indicated that in deciding upon a use of force the officer should consider the severity of the crime at issue, whether the suspect poses an immediate threat of safety to the officer or others, and whether the suspect is actively resisting.

These are all reasonable guidelines for use-of-force.  Schleiter’s deception, however, was to present these three bullet points as if they were not merely guidelines, but the entirety of the MPD use-of-force policy framework.  As presented by Schlieter, these three bulleted factors were the only factors a reasonable officer should consider in determining use-of-force.

In fact, of course, these three factors are merely three important considerations within the broader totality of the circumstances. Arguably, an infinite number of additional factors could reasonably play a part in use-of-force decision making.

Again, this act of deception by Schleiter was doomed to fail the moment Nelson got ahold of Stiger on cross-examination—and it did fail. We’ll cover that in more detail in a moment.

Schleiter pulled out another trick when he attempted to diminish the value to the defense of the presence of the angry mob threatening imminent violence at the scene.  Specifically, Schleiter likes to suggest that a mob isn’t threatening or something to be concerned about unless they are actually throwing rocks or bottles, or actively attacking the officers.

So Schleiter will ask his witness, did you see the crowd throwing rocks or bottles or attacking the officers? And ,of course, the witness answers no, because the mob wasn’t doing that.

But is that the only conduct by a mob that can lead a reasonable officer to perceive a substantive threat of physical danger, to himself, his partners, EMS, even the suspect for whom the officer has a duty of care (to the extent mob attack interferes with that care)?  Of course not.

Just as was the case with the bullet points falsely presented by Schlieter as representing the totality of factors an officer must consider, similarly throwing rocks and bottles and actively attacking do not constitute the totality of ways a mob can be threatening.

If you’re thinking Nelson had fun with that line of questioning on cross, you would be correct. More on that, again, in a moment.

In fact, we’ll do it right now.

For future reference and viewing pleasure, here’s the video of today’s direct questioning of Stiger by Prosecutor Schleiter:

Stiger Direct Questioning

Stiger Cross-Examination

The first shocker in all this was that despite the huge significance of this case, and the national profile it has seized, the state apparently managed to choose as a use-of-force expert witness someone who had never testified in any state or Federal court as a use-of-force expert witness.

I know you’re thinking I mistyped that, so I’ll repeat it:

Sergeant Jody Stiger, the state’s highly paid use-of-force expert witness retained to share his expertise with the jury in Minnesota v. Chauvin, one of the highest-profile police use-of-force prosecutions in American history, has never before testified as a use-of-force expert witness in any state or Federal court.

This. Was. His. First.

To say I just about fell out of my chair when I heard that would be an understatement.

It almost boggles the mind.  Can the state really have thought it a good idea, in a case of this magnitude with such stakes—literally, both Chauvin facing possible life in prison and urban centers all over the nation facing an explicit threat of widespread rioting, looting, and arson—to retain as their use-of-force expert witness someone who had never before testified as such in court.

Does that make any sense?

Why? Is it possible they literally could not find another use-of-force expert witness willing to provide the testimony they wanted? This was their last option for the narrative they wanted told to the jury?

I don’t know if that’s the case, and of course I couldn’t know.  If there’s an alternative explanation for how Sergeant Stiger got this of all cases to be his first outing as a use-of-force expert witness in court, however, I can’t imagine what it might be.

I will tell you this much, as someone who does expert legal consulting work myself, and that is that like any skill, you get better at it the more you do it.  I’m a vastly more capable legal consultant on use-of-force cases in 2021 than I was in 1996, because of my accumulated experience.  To put it another way, my first effort was nothing as capable as my most current effort.

And that lack of experience showed starkly in Sergeant Stiger’s first effort testifying in this case.  That’s not a knock on Sergeant Stiger, who came across as quite likeable, it’s simply a reflection of the reality that experience matters, and in the context of providing use-of-force expert testimony in court, Stiger came into this trial with literally zero experience.

Zero. Experience.  And it showed.

Nelson also touched on the fact that Stiger’s entire personal use-of-force experience was with the Los Angeles Police Department and the state of California, and not the use-of-force laws and policies of Minnesota.  When pressed on this, Stiger answered that police use-of-force policies were pretty much standardized across the entire country—but this reply would be contradicted in later cross-examination by none other that Sergeant Stiger himself, hwhoow offered or conceded to a variety of ways in which police use of force varied between jurisdictions.

Even more shocking to me, as someone who does expert consultancy and reports and such myself in my own work, Stiger’s preparation for his opinion, and his recollection of his own work product, was astonishingly sub-par.

In the context of the MPD training and policy materials he considered in coming to his opinion, for example, Nelson managed to disclose that the many videos embedded in MPD training slide decks were never considered by Stiger. Why not? Because Stiger had received PDFs of those slides, not the actual Powerpoint decks themselves, and so the videos could not be played.

I don’t even know what to say about that.

Folks, I charge a lot of money for my legal consulting work, and one of the reasons I do so is because when I take on a case I look at everything. Every. Thing. Nothing goes unconsidered. I can’t imagine looking at a subset of training materials and providing a purported expert opinion on the central issue in a trial that could see a man sentenced to 40 years in prison.

Shocking.

Another possible sign of Stiger’s lack of experience was the nature of the written report of his opinion that he’d delivered to his clients, as the work product of his $10,000 expert fee (later supplemented with a $3,000 court appearance fee).

Stiger’s total report of his expert analysis and opinion amounted to a total of 461 pages.

Impressive, right? Sounds like $10,000 worth of work product to me.

Except … of those 461 pages, fully 95% were appendices, mere attachments of the MPD training and policy materials that had been sent to Stiger by the prosecutors themselves.

Only 26 of the 461 pages were substantive analysis and opinion.

We’ve probably all heard the expression that all a consultant does is take your watch, glance at it, and tell you what time it is, and Stiger certainly got that part of the job right.

In another indication of Stiger’s poor grasp of the content on which he was supposed to be expert for purposes of his testimony in this trial, at one point Nelson began digging into the specific MPD use-of-force policies central to deciding if Chauvin’s conduct was reasonable, on the one hand, or worthy of a 40-year prison sentence, on the other.

As part of that discussion, Nelson focused on one particular policy, asking Stiger to confirm if that was policy number 5-303. In fact, that is one of the key MPD use-of-force policies in this case.

Stiger. Did. Not. Know.  He literally told Nelson, “I don’t know the exact number.”’

Again, I just about fell out of my chair.  It’s not like Stiger was having a casual conversation about MPD use-of-force policy at a dinner party. He’s accepted $10,000 to write a 26-page report on precisely these policies, and another $3,000 to show up in court and testify about them, in case with a multi-decade prison sentence and widespread rioting on the line—and he couldn’t remember the number of the key policy in that analysis.

Next Nelson switched over to asking Stiger about the US Supreme Court case of Graham v. Connor, one of the seminal USSC cases on police use of force.  By the way, if you’ve never read it, you should, and you can find it hereGraham v. Connor, 490 U.S. 386 (US Supreme Court 1989)

When Stiger had been pressed about variances in use-of-force law across jurisdictions, he’d pushed back by claiming that they were all basically the same, because they were all based on the legal standard of Graham v. Connor.  Well, that’s true, on a macro sense, but it’s far from true on a micro sense, and in use-of-force law, folks, the details matter. A lot.

Nelson began this discussion of Graham by first using it to gut Prosecutor Schleiter’s earlier claim that the three highlighted bullet points in the MPD use-of-force policy—severity of crime, threat of suspect, resistance of suspect—were the only factors to consider.  He did so by first having Stiger confirm that MPD policy was thoroughly based on Graham v. Connor, something Stiger could hardly deny both because MPD policy explicitly cited Graham and Stiger himself had just claimed that all law enforcement use-of-force everywhere was based on Graham.

Then Nelson dug into Graham. Isn’t it true that Graham is not limited to three bullet points of consideration in deciding if a use of force by police is reasonable?  Well, yes, answered Stiger.

Isn’t it true, Nelson asked, that Graham itself says that the test of reasonableness under the 4th Amendment is not subject to exact definition, but requires careful attention to the facts and circumstances of each case, essentially quoting directly from Graham. That’s correct, answered Stiger.

And isn’t that because an officer’s use-of-force decision may well include those three bullet points highlighted by Schleiter, but it certainly is not limited to them? Again, the state’s own highly-paid use-of-force expert was obliged to agree.

In fact, asked Nelson, here again essentially quoting Graham, isn’t it true that the calculus of reasonableness must allow consideration of many factors and that officers are often forced to make split-second judgments in circumstances that are rapidly evolving.  Right again, agreed Stiger.

In fact, the officer needs to consider the totality of the circumstances.  Yes, answered Stiger.  The subject’s actions. Yes. Before, during and after the use of force. Yes. Everything the officer knew at the time. Yes, again.

There are many layers to use-of-force decision making, including general training, the general surroundings of the event, the specific surroundings of the event, the type of force used, how long, the officer’s perceptions and actions, the suspect’s actions, officer training, personal experience, tactical advantages and disadvantages.  Yes to all that, agreed Stiger.

Also, scene security, suggested Nelson, the safety and security of the officer, his partners, the public generally. Again, yes.

At this point it really began to feel like Stiger had been retained as a defense expert witness on use-of-force, rather than retained by the prosecutors who had actually paid him.

But it got worse for the prosecution.

Nelson asked if it wasn’t true that there were certain situations that by their very nature created an exceptionally heightened concern on the part of responding officers.  Like a domestic.

Or like a robbery, or a shooting, Stiger helpfully suggested.

Sure, answered Nelson. So, sometimes an officer might have to be prepared for an increased risk.

I wouldn’t agree with that, said Stiger.

Oh? Explain

An officer should be prepared for the highest level of risk in every encounter.

So, every time an officer responds, there’s an inherent risk, it’s the nature of policing, and a reasonable officer has to be prepared for the risk level to change?

Stiger: Correct.

It’s hard to imagine more helpful testimony for the defense.

Nelson also again hit the point that MPD use-of-force policy was not a simple, binary framework, if A then B, if X then Y, as Schleiter suggested to the jury, but that in fact every single facet of that policy had qualifications.  If time allows, as safety permits, and so forth.  Again, Stiger was obliged to agree.

Nelson: Police don’t look at force in a vacuum, do they?  Stiger: We should not. I look to the totality of the circumstances.

Among those circumstances, Nelson suggested, was what the officer knew going into the call important, correct?  Correct, answered Stiger.

Do you agree that in this case, Chauvin was responding to a priority 1 call, backing up other officers (both of whom were brand new rookies, incidentally), code 3, lights and sirens, to deal with a suspect who was as much as 6 ½ feet tall and believed to be under the influence?

Correct.

Reasonable for the officer to rely on that information, as it sets the stage, the inherent risk of responding to that call?

Stiger: Yes.

Is the fact of Floyd’s size of particular concern, asked Nelson?

I wouldn’t say so, said Stiger.

Oh? Explain.

Well, Stiger answered, I’ve seen even small suspects be even more dangerous than large ones.

Holy. Cow. In other words, it’s not a case where an officer should not infer greater risk from a large suspect, it’s a case where an officer should infer that same risk from even small suspects.

Nelson then asked Stiger about the extent to which the information in the 911 call should have informed Chauvin’s decision-making. To this, Stiger responded that he had never heard the 911 call.

You read that right:  the state’s highly paid use-of-force expert witness had never bothered listening to the 911 call that set this entire police response in motion, and which was the foundational information the officers brought with them in responding to the scene.

I. Can’t. Even

But then Nelson scored huge when he dug into the specific knowledge that Chauvin brought with him to the scene, and in particular what level of force that knowledge would have privileged Chauvin to use against Floyd.

Chauvin had heard a priority 1 call, knew force was being used, heard scuffling over the radio, knew other officers were engaged in a fight, was called as backup to support them, knew the suspect was possible impaired, and 6 ½ feet tall, and when he arrived he saw Floyd and twow officers at the back of the squad car, with the Floyd actively resisting their lawful efforts to place him in the squid car. Agreed?

Agreed, said Stiger.

Under your analysis of the MPD use-of-force continuum and policies, is it true that Chauvin would have been privileged to simply draw his Taser and use it on Floyd, to stop Floyd’s active resistance.

Yes, answered Stiger.

Nelson: But he didn’t do that.

Stiger: No, he did not.

Lesson for the jury: Chauvin not only didn’t use excessive force throughout his encounter with Floyd, he didn’t even use as much force as MPD policy allowed for.  Instead, he used less force.

Naturally, the prosecution will make the legitimate point that just because Chauvin declined to use maximum permitted force upon arrival at the scene doesn’t necessarily mean he didn’t use excessive force later on, when circumstances had changed, but this was compelling cross of the state’s witness by any reasonable measure.

Then we had another incident in which Stiger seemed woefully poorly informed about his own $10,000 26-page report.  Nelson asked if Stiger himself had not concluded in his report that the efforts of Lane and Keung to compel Floyd’s arrest had, because of Floyd’s active resistance, ended when they realized the “futility of their efforts.”

Stiger objected that he didn’t remember using those words in his report.

Would referring to your report refresh your recollection? Hands over the report. Stiger looks at it read, nods.

Oh, yeah, I did say “futility of their efforts.”

Folks, again, it’s not like Stiger didn’t know he was going to be testifying about his report today, nor that his report was, let’s face it, all that lengthy.  I just don’t understand how he could be so poorly prepared.

Then Nelson dove into Stiger’s personal experience in making arrests of suspects. Isn’t it true that sometimes suspects lie in an effort to avoid arrest? Yes. They’ll bargain? Yes. They’ll make up complaints of distress? Yes. Should an officer consider not just the words, but also the actions, to see if those are consistent with the words?  Yes.

When Floyd began saying that he couldn’t breath, wasn’t he at that moment violently fighting with the officers to prevent them from putting him in the squad car?  Yes.  Isn’t that conduct inconsistent with not being able to breath? Yes.

Lesson: the officers had good reason to believe that Floyd’s claims of difficulty breathing were a fabricated claim of medical distress.

Diving into Stiger’s personal experience on this issue, Nelson asked him if while making an arrest Stiger had ever had a suspect feign a physical ailment. Yes. Fake a heart attack. Yes. An officer has to consider if those claims are lies? Yes.

About Floyd’s denial of drug use during the arrest, Nelson asked if Stiger had observed white around Floyd’s mouth and whether that was consistent with someone using controlled substances? Yes. Common for users to deny use? Yes. Officers need to take that into account? Yes.

To counter the prosecution’s suggestions to the jury that Chauvin’s use-of-force could no longer be justified once Floyd was handcuffed and prone, Nelson asked Stiger if a suspect in handcuffs can still be a threat?  Yes, answered Stiger. They can bite, kick, run. Yes.

They can get the officer’s weapon? Yes. Even if handcuffed. Yes.

The notion that a handcuffed suspect is no longer a threat is not correct, a handcuffed suspect can continue to present a risk? Yes, answered Stiger.

Then Nelson scored what many may perceive to be an important point, albeit I’m rather ambivalent about this one.  Nelson played a short piece of video in which Floyd is prone on the street, and speaking in his muttering fashion.

What’s Floyd saying there, asked Nelson? Is he saying “I ate too many drugs”?  Stiger answers he can’t tell.

No worries, Nelson is happy to play it again for Stiger. And the jury.

Stiger is still unsure if that’s what Floyd was saying, and Nelson lets it go—but the jury has heard the suggestion.

Later in the day, with a different witness, BCA Special Agent Reyerson, whose testimony I won’t spend much time on because it was so boring, Nelson would play the same video, and ask the same question.  This time, the witness will agree—yes, Reyerson answers, it sounds like “I ate too many drugs” to me.

Ka. Boom.

So damaging was this Reyerson testimony for the state that they actually re-called Reyerson as a witness for the sole reason of having him listen again, and give a different answer.  Oh, now, says Reyerson the second, now it sounds like “I didn’t take no drugs.”

Well, OK. As I said, I’m ambivalent about Floyd’s statement on the merits, because I sure can’t understand what he’s actually saying. Although it must be said Nelson’s version will certainly appear reasonable to a jury that’s been exposed to the toxicology report on Floyd.

But in terms of legal strategy by the defense, this was brilliant. Not only did Nelson plant that seed in the jury’s mind that Floyd had eaten too many drugs and knew it, he got to play the audio for Stiger not once, but twice.

And then again a third time, for Reyerson.

And then the state itself played it for the jury a fourth time!

Amazing.

The nNelson turned to gutting the prosecution’s suggestions that Chauvin’s conduct was criminal because he’d failed to de-escalate as required by MPD policy.

Isn’t it true that the officers initially considered hobbling Floyd when he kicked at them? Yes, answered Stiger.  Did they? No.  So they changed their mind? Yes. And hobbling would have been an escalation of force by the officers? Yes.

When an officer is considering using a higher degree of force, but then changes his mind and does not escalate, is that a form of de-escalation?  Yes, answered Stiger.

So not only did Chauvin use less force than MPD policy allows when he arrived on scene, he was still de-escalating his use of force when Floyd was proned on the street.

You’ll recall that Nelson had previously asked MPD Use-of-Force trainer Lieutenant Mercil if there could be circumstances in which it was appropriate to forcibly restrain a suspect until EMS arrived, and Mercil had responded, that yes there were, and in fact he had done exactly that himself in his own career as a street cop.

Now Nelson asked Stiger if it would be appropriate for an officer holding a suspect in custody, and knowing that the suspect was in medical distress and required advanced medical care, to maintain restraint of that suspect until EMS arrived to ensure he received that care when EMS arrived. Yes, answered Stiger, that would be a reasonable use of force.

Then, after a short morning break, Nelson switched targets to the prosecution’s continued suggestions that the crowd observing Floyd’s arrest should have played no role in the officers’ perception of risk, their use-of-force decision-making, or their ability to provide appropriate care to the suspect in their custody.

Nelson turned to MPD training materials on dealing with crowds, confirmed that Stiger was familiar with those materials, and began to step through them.

Crowds are dynamic, according to MPD training? Yes.  Can contain elements of different people, per training? Yes. Nonviolent crowds can quickly become violent? Yes.

Even 10-12 people, the dynamic can suddenly change? Yes. An officer needs to be sensitive to the potential risk even of a crowd that in the moment is peaceful? Yes. Engaging with the crowd can distract the officer? Yes.

Things a crowd says to the officer can itself create a perception of risk?

Stiger responds that words alone cannot justify a use of force (and this is correct).

But words said in a particular tone can heighten a reasonable officer’s perception of risk?

Risk,  yes, says Stiger.

MPD trains officers to consider the potential signs of aggression? Yes. Like raised voices, tensing muscles, exaggerated gestures, pacing? Yes.

What if someone tells the officer they’d like to slap the f*** out of you, that could be perceived as a threat? Yes, answers Stiger.

Of course, some of the crowd, particular state witness Williams, were explicitly shouting such threats at the officers, as demonstrated in the collected videos of the event.

Nelson asked if an officer placing a knee on the base of the neck across the shoulder blades was an appropriate use-of-force technique in the correct circumstances. Yes, answered Stiger.

In fact, you were trained that way, asked Nelson? Yes.

Nelson asked if the MPD training materials reviewed by Stiger suggested that officers should take particular care providing CPR, if doing so required removing handcuffs (as it would), because the training informed officers that the suspect may come to and be agitated and ready to fight? MPD training does teach that, Stiger answered.

In fact, you have had that same training yourself? Yes.

A suspect was passed out, came to, and fought you more, you’ve had that personal experience as police officer? Yes, answered Stiger.

I feel obliged to remind readers at this point that Stiger is the highly-paid use-of-force expert hired by the PROSECUTORS to assist them in CONVICTING Chauvin. He is NOT a defense witness. Though you’d be hard press to know that, based on his testimony on cross-examination.

Then for the first time in my recollection Nelson touched on the fact that the medical examiner found no damage to Floyd’s neck whatever. Wouldn’t you expect damage if the weight place on the neck was substantial.  Stiger prudently declined to offer an opinion.

And then Nelson used a little trick we’ve seen him use with other witnesses.  That’s fine, he said, I get it. Better for us to ask a doctor that, right? Right, agreed Stiger.

Anybody doubt Nelson has a doctor lined up to say exactly that, and that the jury will perceive that even the state’s own use-of-force expert witness believes that the doctor’s opinion is more credible than the state’s expert?

Well, folks, this is getting really long, and I want to get it out to all of you sometime tonight, so I’m going to end my coverage of Stiger on cross right there.

I do encourage you to watch the video of that cross-examination, here:

Stiger Cross-Examination

There was also re-direct and re-cross of Stiger, and that can viewed below, but the prosecution did little to diminish the points scored by the defense in its cross-examination of the state’s highly-paid use-of-force expert witness.

Stiger Re-Direct

Stiger Re-Cross

Other State’s Witnesses

There were other state’s witnesses today after Stiger, but frankly they were pretty much mind-numbingly boring, so I won’t cover them in depth here, except in summary form.  The other witnesses included BCA Special Agent Reyerson, the BCA case lead on the Floyd case, BCA Forensic Agent Mackenzie Anderson, who processed the crime scene and vehicles including the Floyd DNA of the blood and recovered drugs (defense did not bother to even cross-examine Anderson), BCA Forensic Scientist Breahna Giles, who did chemical analysis of the recovered drugs finding fentanyl, and Susan Mieth a private industry chemist who did chemical analysis of the recovered drugs finding fentanyl and methamphetamine (the defense did not bother to even cross-examine Meith).

I present their video testimony for your viewing pleasure alone—it should be particularly helpful if you have insomnia.

Reyerson Direct Questioning

Reyerson Cross Examination

Reyerson Re-Direct

Reyerson Re-Cross

Reyerson Re-Re-Direct (re-called by state)

Reyerson Re-Re-Cross

Anderson Direct Questioning

Giles Direct Questioning

Giles Cross-Examination

Mieth Direct Questioning

That’s all I have for all of you today.  We’ll be back again in the morning for our LIVE coverage of the trial proceedings, so join us then. And, of course, we’ll have our usual end-of-day wrap-up commentary and analysis in the evening

Until next time, stay safe!

–Andrew

Attorney Andrew F. Branca

Law of Self Defense LLC

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service.  If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here:  Law of Self Defense Membership Trial.

Anyone interested in a free podcast version of our daily legal commentary and analysis of the Chauvin trial can access the Law of Self Defense News/Q&A Podcast, available on most every podcast platform, including PandoraiHeartSpotifyApple PodcastGoogle Podcastsimple RSS feed, and more.

[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]

 

 

16 thoughts on “Chauvin Trial Day 8 Wrap-Up: Defense Pummels Prosecution with Their Own Expert Witness”

  1. Bobbijo Lopez

    Show me the forms the police filed. One mistake case dropped. One form missing case dropped. And what law? If O can not read the Constitution and the book they code the charges. What Law!

  2. Attorney Branca, did you not hear Stiger say yesterday from the very beginning “I’m on vacation”?? There was audible laughter in the courtroom. I laughed too but maybe not for the same reason. Could the State (or jury) really have appreciated that comment? I expected that to set the tone for the rest of his testimony and was not disappointed.

    1. Attorney Andrew Branca

      It’s the kind of thing you get from an expert witness their first time in court. I don’t blame Stiger for that, he’s just human. I do, however blame the prosecution, who knew they had a first-time expert, from properly preparing him. They’ve had months. It seems like they just don’t actually care about doing the actual work.

  3. “I ate too many drugs”
    “I ain’t do any drugs”
    Too close to call.
    Considering he was pleasing innocent and they were asking him about what drugs he took, regardless of the fact that we know he did, more than likely he was claiming he didn’t.

    1. Attorney Andrew Branca

      Yep. But the repetitive replay of the video can only help the defense. When the tox comes into evidence, be obvious Floyd “ate too many drugs.”

      1. Josephdemartino

        And even an ambiguous tape helps in establishing reasonable doubt.

        I must say my greatest fear for this trial is that it ends in a hung jury. If one juror (or a few) is able to rationally judge the evidence and refuse to convict there will almost certainly be blood on the street. And based on what I saw of the voir dire (and your analysis thereof) I’d be very surprised if the jury doesn’t include at least one IRRATIONAL juror who will vote based on emotion and what he or she “knows” is a pattern of policeracistmurder even if the facts in THIS case don’t support that idea. A unanimous verdict ala George Zimmerman seems unlikely. (And a fat lot of good that did in terms of defeating the narrative, although it kept George out of prison, thank God.) A conviction is still possible, although at this point it shouldn’t be, given the state’s utter failure to meet its various burdens. But a hung jury either way is going to be a nightmare all around, not least because it will almost certain result in a repeat of the entire circus.

  4. Hi Andrew,

    I most sincerely hope your analysis is the one that prevails. You certainly present a powerful argument for it. The prosecution looks like the Keystone Kops.

    If there is any justice at all in this case, all four police officers are going to a) walk, and b) never need to work again courtesy of the citizens of Minneapolis and the State of Minnesota. Given the way they have been adjudged guilty without the slightest bit of due process since this happened, they each deserve considerably more money than George Floyd’s family received. Derek Chauvin, though, deserves a minimum of twice as much.

  5. John, Ethics, Morality, Justice and the Law

    As a non-lawyer, I have been tremendously impressed with the lone defense attorney, Nelson. Attorney Branca’s analysis notes just how impressive Nelson is to another defense attorney. Super analysis, thank you. Seems that a “team” of one can out perform a team of attorneys that rival the numbers of a football team. Watching Attorney Nelson is better than watching Perry Mason!

  6. Andrew, I think the reason the state had to hire Stiger as an expert witness was because it was not easy to find an expert with superman powers. Without Stiger’s x-ray vision and super hearing he would never have been able to testify that from viewing the video he could determine that the handcuffs were not double locked, or that he heard the handcuffs ratcheting tighter on Floyd as he lay there on the ground in complete submission.

    A lot of talk about the MPD manual. What is the legal status of the MPD manual? Is it a criminal offense in Minnesota to violate the MPD manual, or is conduct only made a criminal offense in Minnesota by statute?

  7. TheDentalWarrior

    The testimony of the prosecutions expert (Stiger) is stunningly harmful to their case.

    So, naturally, I agree with your assessment. My concern is whether the jury will see the obvious holes in the prosecution’s case and their expert’s testimony. My faith in the People has been severely damaged in recent years. The general public has become immune to facts and logic. Literally immune. You can show them HARD evidence of something, and they will deny it without a thought. And, that’s the key word: thought.

    The average person seems to have suspended his / her ability to think critically.

    So, while the defense’s arguments are overwhelmingly compelling…. will the JURY see it? Honest question.

    Furthermore, will the jury feel emotionally forced to find the defendant guilty JUST to avoid the inevitable rioting that would follow a not guilty verdict? Rumor has it that the SCOTUS did exactly that recently.

  8. Franklin Werkheiser

    The democrats have turned our Justice system into a Chaotic Joke where criminals no longer fear committing any type of criminal act and will always Resist arrest because the officers hands are tied. They cried when they were shot and now they cry when officers are forced to kneel on them all because they committed a criminal act and RESISTED Arrest. Don’t commit a criminal act and if you do don’t resist arrest and you won’t have to worry about going through this. Under the democrats we have over flow of Death row inmates because they refuse to take the Justified actions of Executing someone that Willfully took the life of an Innocent Victim which is called Murder. Now they are Crucifying officers that are actually defending themselves trying to arrest criminals that not only committed a crime but it turns out they have a life long criminal record as long as they are old. Remember it’s the Liberal democrats have created this circus for their own takeover of America and they’ve made it Political.

  9. I’ve watched the entire proceedings and completely disagree with your analysis. I think the for the most part prosecution has presented a compelling case. Mr. Nelson has very little to work with and is annoying the audience (and by extension the jury) with his repetitive and irrelevant lines of questioning. And his demeanor is not trustworthy or sympathetic.

    Clearly you have a bias towards defending criminals. And you offer this self-congratulatory legal analysis to puff up your ego. I don’t buy it.

    But how do you sleep at night, Andrew Branca?

    1. troublesolver

      Of course, there is a bias. You have one too, me as well. That’s normal. Most of the media outlets, while broadcasting the full trial, offer very one sided commentary. Not too many folks watch the entire proceedings and they rely either on titles or on brief summaries. What I also noticed is that many reporters will put prosecution biased narrative in the beginning of their article and later, only not to be accused of favoring the state too much will offer more balanced view probably hoping that time constrained readers will not scroll that much down.

      Besides, this is a defense attorney blog. Wouldn’t it make sense to have the views covered here be from the challenging side of Nelson, who is doing tremendous job under stressing circumstances. We definitely do not know whether he is trustworthy or sympathetic in the eyes of the Jury. How do you know that? Isn’t it biased in itself to make such a claim?

      In any case, given that Jury cannot be disbarred, Jury nullification is not unlikely and the political climate is so tense, saying that defense efforts is an uphill battle will be a huge understatement.

      All best!

      1. The probability of jury nullification is why the defense will have to be sure and make all the right motions and objections to make the evidence in the case reviewable by the appeals court and the supreme court.

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